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Burton v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

September 5, 2017

SABINA BURTON, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, ELIZABETH THROOP, DANIEL FAIRCHILD, ELIZABETH FRIEDERS, QIONG LI, MARY ROSE WILLIAMS, and STACI STROBL, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Plaintiff Sabina Burton is a tenured associate professor of criminal justice at the University of Wisconsin-Platteville (UWP). This is the second lawsuit Burton has brought against defendant Board of Regents of the University of Wisconsin System (the entity responsible for UWP) and UWP employees concerning alleged discrimination and retaliation stemming from Burton's assistance of a student who felt she was sexually harassed by another professor. Defendants move to dismiss each of Burton's claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. 15. The court will grant defendants' motion on all but one of Burton's claims.

         ALLEGATIONS OF FACT

         The court draws the following facts from Burton's amended complaint, Dkt. 10, and accepts them as true for the purpose of deciding defendants' motion. Parungao v. Comm. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017). The court also draws facts from court records in Burton's first lawsuit. Id.

         On April 14, 2014, Burton filed suit against the Board of Regents and three UWP employees: Thomas Caywood, Elizabeth Throop, and Michael Dalecki. See Burton v. Bd. of Regents of the Univ. of Wis. Sys. (Burton I), No. 14-cv-274 (W.D. Wis. filed Apr. 14, 2014). She alleged that she faced discrimination and retaliation from UWP colleagues and administrators after she advocated for a student who complained of sexual assault at the hands of another UWP professor-both because of her support for the student and because of the administrative charges of discrimination and the lawsuit that she eventually filed.

         On November 12, 2014, Burton filed a grievance with the UWP Complaints and Grievances Commission regarding a letter of direction placed in Burton's personnel file by defendant Elizabeth Throop, the dean of the UWP College of Liberal Arts and Education.[1]Defendants Elizabeth Frieders, Qiong Li, Mary Rose Williams, and Staci Strobl were members of the Commission at the time; defendant Daniel Fairchild was the chairperson. The UWP policy on grievances required a hearing within 20 working days of filing a grievance with the chairperson, but no hearing was scheduled on Burton's grievance. On September 11, 2015, Burton amended her complaint in Burton I to include claims concerning the letter of direction and subsequent grievance. On October 19, 2015, Burton withdrew her grievance against Throop.

         Meanwhile, Strobl became chair of the criminal justice department. She immediately began to scrutinize Burton more than other criminal justice faculty and staff. For example, she sent “a copy of each email” from Burton to Throop and other UWP administrators. Dkt. 10, ¶ 162. At one point, Burton complained to Strobl that other faculty and staff, including Deborah Rice and Michael Dalecki (the former interim chair of the department), were harassing her, but Strobl did nothing.

         In March 2016, the court granted summary judgment in the defendants' favor on all of Burton's claims. See Burton I, 171 F.Supp.3d 830 (W.D. Wis. 2016). The court did so because Burton conceded that she could not succeed on many of her claims and adduced no evidence that she suffered materially adverse actions as a result of filing charges of discrimination and bringing the lawsuit. Id. at 833-34. The court denied Burton's pro se motion for reconsideration. See Burton v. Bd. of Regents of the Univ. of Wis. Sys., No. 14-cv-274, 2016 WL 35112287 (W.D. Wis. June 22, 2016). Burton appealed; the Seventh Circuit affirmed. See Burton v. Bd. of Regents of the Univ. of Wis. Sys., 851 F.3d 690 (7th Cir. 2017).

         On April 26, 2016, Burton filed a grievance against Rice because Rice falsely stated that Burton had a mental illness. She also renewed her grievance against Throop and requested a hearing. The grievance policy did not explicitly prohibit or allow renewal of grievances. She explained that she wanted the letter of direction removed from her personnel file and that she “possessed testimony and documents from [Burton I] that showed that the alleged incidents in the [letter of direction] involved protected activity . . . and/or were factually incorrect.” Dkt. 10, ¶ 132. Throop learned of Burton's request and talked to one or more of the Commission members about it. On May 3, the Commission refused to hear Burton's grievance against Rice or her renewed grievance against Throop.

         On May 2, Dalecki mimicked shooting a gun at Burton with his hand. On May 9, Burton told the UWP director of human resources, Janelle Crowley, about this gesture, which Burton took as a threat made in response to Burton's activities concerning Burton I. Dalecki was never disciplined for this gesture. On the same day, Crowley agreed to remove the letter of direction from Burton's personnel file. But soon after, Crowley spoke to Throop and then refused to remove the letter of direction.

         On May 11, Strobl told Burton that she would remove Burton from a grant project. When the grant proposal was submitted a few weeks later, Burton was listed merely as a resource, not among key personnel. This meant that if the grant was approved, Burton would not be paid for any work she did on the project.

         On June 3, the UWP chancellor, Dennis Shields, sent Burton a letter of direction. The letter reprimanded Burton for reporting Dalecki's gesture, Strobl's removal of Burton from the grant project, and other “retaliation and harassment, ” and for requesting that her grievances against Throop and Rice be heard. Id. ¶ 186.

         On June 20, Burton filed an administrative charge with the U.S. Department of Education Office for Civil Rights and the Equal Employment Opportunity Commission (EEOC) concerning the events detailed above. The EEOC issued Burton a right-to-sue letter on October 14.

         Burton filed suit in this court on January 17, 2017. Dkt. 1. She filed an amended complaint on April 9, 2017. Dkt. 10. The court has subject matter jurisdiction over Burton's claims under 28 U.S.C. § 1331 because they arise under federal law.

         ANALYSIS

         The claims litigated in Burton I are clearly intertwined with the claims Burton asserts here. So before determining whether Burton states a claim for relief in this lawsuit, the court will define the scope of those claims in light of the preclusive effect of Burton I. Doctrines of preclusion “preclud[e] parties from contesting matters that they have had a full and fair opportunity to litigate.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)). Claim preclusion bars successive litigation of “any claims that were litigated or could have been litigated in a previous action, ” Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016), whereas issue preclusion bars “successive litigation of an issue of fact or law actually litigated and resolved.” Taylor, 553 U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). Defendants assert only issue preclusion as an affirmative ...


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